Four Supreme Court justices are in their 70s and the possibility that the next president may nominate their successors should be a significant issue in this year’s campaign. With the court so evenly divided along partisan lines, the president who gets to replace a justice from the opposite side could determine the future of the court for decades to come. So Mitt Romney’s choice of Robert Bork as a chairman of his Judicial Advisory Committee earlier this year raised more than a few eyebrows. In an editorial, The New York Times has called Bork one of “the most divisive figures in American law” and his role in Romney’s campaign as “disturbing.”
You might recall the last time Bork was in the national spotlight. It was 1987. Supreme Court Justice Lewis Powell, Jr., a judicial moderate (and author of the Powell Memo), was retiring, and President Reagan chose Bork as his replacement. The nomination was controversial from the start.
At the time, Bork was best known for his role in the “Saturday Night Massacre” at the height of the Watergate scandal. Special prosecutor Archibald Cox had threatened to seek a court order forcing President Nixon to provide copies of nine tape recordings of conversations in the Oval Office. Nixon refused, and ordered Attorney General Elliot Richardson to dismiss Cox. Instead, Richardson resigned in protest. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox, but Ruckelshaus also resigned.
Third in line was the Solicitor General: Robert Bork. Bork later said that when the president approached him with the order to fire Cox, he too considered resigning. But instead, he was sworn in as acting attorney general and fired Cox.
Along with Supreme Court Justices Scalia and Thomas, Bork is an advocate of “originalism,” a philosophy that holds judges to what’s believed to be the constitutional framers’ original intent. Over the last few decades, originalism has increasingly clashed with the prevailing idea amongst justices that the Constitution is an organic, evolving document. Originalism often results in extreme conservatism – as David A. Love argued in The Grio:
“In a nation that once rendered black people three-fifths of a person, and allowed only white male landowners to vote, original intent poses a problem for some.”
Originalism often put Bork on the unpopular side of cultural debates: He opposed the Civil Rights Act of 1964, the Roe v. Wade decision and applying the first amendment to anything other than political speech.
Both Bork’s role in the Saturday Night Massacre and his philosophy of originalism came under fire when Reagan nominated Bork to the Supreme Court. On the first day of confirmation hearings, Senator Ted Kennedy gave a speech describing an America governed by Bork’s legal philosophies.
Later that same day, in a nine-minute statement, Bork described his legal philosophy.
But Kennedy’s speech was the one America remembered.
“There was not a line in that speech that was accurate,” Bork later claimed. But the speech worked. The Senate rejected Bork — by the widest margin in history — and the seat went instead to Judge Anthony Kennedy (no relation to Ted Kennedy). As the Times noted, “The right wing has always claimed Mr. Bork’s defeat was entirely partisan. In fact, it has made a verb out of his confirmation battle. To be borked is to be destroyed by whatever means it takes, and his confirmation struggle was, therefore, not about the substance of his legal views.”
Bork has been an advisor to Romney since 2007. Speaking of Bork at a town hall that year, Romney said, “I wish he were already on the Supreme Court. He’s the kind of brilliant conservative mind that this court could use.”
Moyers & Company guest Jamie Raskin writes in the People for the American Way’s Borking America report that “[b]y naming Bork as a lead advisor on the law and the courts, Romney has shown that his approach to the Constitution is entirely political, partisan and right-wing. The Roberts Court has already gone to great lengths to remove constraints on corporate power throughout American life, and Robert Bork proposes to make things much worse.”
A Gallup Poll conducted this summer found approval for the Court at near-historic lows. With four justices nearing retirement, it seems likely that the next president — and his advisors — may determine the balance of the Court for years to come. So in November, Americans should remember that a vote for Romney or Obama may also be a vote for Justice Ginsberg’s or Breyer’s replacement. The future of the one percent Court is in our hands.